Division 8. Certificate of inheritance (Section 2353 – 2370)

Last Updated on July 1, 2021 by LawEuro

German Civil Code (BGB) German law

Division 8
Certificate of inheritance

Section 2353
Competence of the probate court, application

The probate court must issue to the heir on application a certificate concerning his right of succession, and, if he is entitled only to a share of the inheritance, concerning the size of his share (certificate of inheritance).

Section 2354
Statements of the heir on intestacy in the application

(1) A person who, as an heir on intestacy, applies for the issue of a certificate of inheritance must state:

1. the time of death of the deceased,

2. the relationship on which his right of succession is based,

3. whether and which persons exist or existed by whom he would be excluded from succession or his share of the inheritance would be reduced,

4. whether and what dispositions mortis causa of the deceased exist,

5. whether any legal dispute concerning his right of succession is pending.

(2) If a person has ceased to be an heir who would exclude the applicant from succession or would diminish his share of the inheritance, the applicant must state the way in which that person has ceased to be an heir.

Section 2355
Statements of the testamentary heir in the application

A person who applies for the issue of a certificate of inheritance on the basis of a disposition mortis causa must specify the disposition upon which his right of succession is based, and must state whether and what other dispositions mortis causa of the testator exist, and must provide the information specified in sections 2354 (1) nos. 1, 5 and (2).

Section 2356
Proof of accuracy of statements

(1) The applicant must prove the correctness of the information given in accordance with section 2354 (1) nos. 1, 2 (2) by public documents, and in the case of section 2355, must present the document on which his right of succession is based. Where the documents cannot be procured or can be procured only with disproportionate difficulty, it suffices if other proof is furnished.

(2) For proof that the testator at the time of his death was living in the matrimonial property regime of community of accrued gains, and in respect of the other information required under sections 2354 and 2355, the applicant must declare in lieu of an oath before a court or notary that he is not aware of anything that negatives his statements. The probate court may dispense with the declaration if it regards it as unnecessary.

(3) These provisions do not apply to the extent that the facts are obvious to the probate court.

Section 2357
Joint certificate of inheritance

(1) If there is more than one heir, a joint certificate of inheritance is to be issued upon application. The application may be made by any of the heirs.

(2) In the application, the heirs and their shares of the inheritance are to be stated.

(3) If the application is not made by all the heirs, it must contain a statement that the other heirs have accepted the inheritance. The provisions of section 2356 apply also to the statements made by the applicant referring to the other heirs.

(4) The declaration in lieu of an oath is to be made by all of the heirs, unless the probate court considers that a declaration by one or more of them is sufficient.

Section 2358
Investigations by the probate court

(1) The probate court must, with the aid of the evidence furnished by the applicant, of its own motion make the investigations necessary to establish the facts, and must hear the evidence that appears suitable.

(2) The probate court may issue a public request to be notified of the rights of succession of other persons; the manner of publication and the length of the notification period are determined by the provisions governing the public notice procedure.

Section 2359
Requirements for the issue of a certificate of inheritance

The certificate of inheritance may be issued only if the probate court is of the opinion that the facts required to substantiate the application have been established.

Section 2360
(repealed)

Section 2361
Revocation or declaration of invalidity of an inaccurate certificate of inheritance

(1) If it transpires that a certificate of inheritance that has been issued is incorrect, the probate court must revoke it. The certificate of inheritance becomes invalid upon its revocation.

(2) If the certificate of inheritance cannot be recovered immediately, the probate court must make an order declaring it void. The order must be published in accordance with the provisions of the Code of Civil Procedure [Zivilprozessordnung] governing the public service of a summons. The declaration of invalidity enters into effect upon the expiry of one month after the last publication of the order in the official gazettes.

(3) The probate court may, of its own motion, make investigations as to the correctness of a certificate of inheritance issued.

Section 2362
Claim for return and information by the true heir

(1) The true heir may demand from a person in possession of an incorrect certificate of inheritance that he return it to the probate court.

(2) A person to whom an incorrect certificate of inheritance has been issued must provide the true heir with information concerning the condition of the inheritance and the location of the objects of the inheritance.

Section 2363
Contents of the certificate of inheritance for the prior heir

(1) A certificate of inheritance issued to a prior heir is to state that subsequent succession has been directed, under what conditions it will take effect and who the subsequent heir is. If the testator has appointed the subsequent heir for the residue of the inheritance remaining at the time when subsequent succession takes effect, or if he has directed that the prior heir is to have free disposition of the inheritance, this is also to be stated.

(2) The subsequent heir has the right specified in section 2362 (1).

Section 2364
Indication of the executor in the certificate of inheritance, claim for delivery by the executor

(1) If the testator has appointed an executor, the appointment is to be stated in the certificate of inheritance.

(2) The executor has the right specified in section 2362 (1).

Section 2365
Presumption of legitimacy of the certificate of inheritance

It is presumed that the person who is named as heir in the certificate of inheritance has the right of succession stated in the certificate, and that he is not restricted by any directions other than those stated.

Section 2366
Presumption of the authenticity of the certificate of inheritance

If a person acquires from the person named in the certificate of inheritance as heir, by a legal transaction, an object of the inheritance, a right in such object, or a release from a right belonging to the inheritance, the contents of the certificate of inheritance are deemed in his favour to be correct as far as the presumption under section 2365 extends, unless he knows of the incorrectness or knows that the probate court has demanded the return of the certificate of inheritance for incorrectness.

Section 2367
Performance for the person named as heir in the certificate of inheritance

The provision of section 2366 applies with the necessary modifications if an act of performance has been effected to the person named as heir in the certificate of inheritance, on the basis of a right belonging to the inheritance, or if a legal transaction, containing a disposition of the right and not falling under the provision of section 2366, has been entered into between him and another in respect of such a right.

Section 2368
Executor’s certificate

(1) Upon application, the probate court must issue to an executor a certificate of his appointment. If the executor is restricted in his administration of the estate, or if the testator has directed that the executor is not to be restricted in incurring obligations on behalf of the estate, this is to be stated in the certificate.

(2) (repealed)

(3) The provisions on a certificate of inheritance apply with the necessary modifications to this certificate; upon the ending of the office of the testator the certificate becomes invalid.

Section 2369
Certificate of inheritance limited to objects

(1) If an inheritance includes objects located outside the country, the application to issue a certificate of inheritance may be limited to the objects located within the country.

(2) An object for which a German public authority keeps a ledger or register for the registration of any person entitled to the object is deemed to be located within the country. A claim is deemed to be located within the country if a German court is competent for the action.

Section 2370
Presumption of authenticity of declaration of death

(1) If a person who has been declared dead or whose time of death has been determined in accordance with the provisions of the Missing Persons Act [Verschollenheitsgesetz] survives the point of time that is deemed to be his time of death, or if he died before this point of time, the person who would be the heir on the basis of the declaration of death or the determination of the time of death is deemed for the benefit of the third party, even without the issue of a certificate of inheritance, to be the heir with regard to the legal transactions designated in section 2366 and 2367, unless the third party knows of the incorrectness of the declaration of death or of the determination of the time of death or knows that they have been revoked.

(2) Where a certificate of inheritance has been issued, the person who has been declared to be dead, or whose time of death has been determined in accordance with the provisions of the Missing Persons Act [Verschollenheitsgesetz], if he is still alive, has the rights specified in section 2362. A person whose death, or the declaration of whose death or the determination of the time of whose death has been wrongly assumed, has the same rights.

Table of contents (German Civil Code)

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